Citation Nr: 0736643
Decision Date: 11/21/07 Archive Date: 12/06/07
DOCKET NO. 05-08 252 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to an effective date prior to February 4, 1997,
for a grant of service connection for post-traumatic stress
disorder.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
J. M. Macierowski, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1991 to April
1991, with additional service in the National Guard. This
matter comes before the Board of Veterans' Appeals (Board) on
appeal from the Department of Veterans Affairs (VA) Regional
Office in Cleveland, Ohio (RO).
FINDINGS OF FACT
1. The veteran's original claim for service connection for
post-traumatic stress disorder (PTSD) was received by VA in
December 1992, and denied by a November 1993 rating decision;
the veteran never filed a notice of disagreement, and that
decision is final.
2. The veteran's claim to reopen the issue of entitlement to
service connection for PTSD was received by VA on February 4,
1997.
3. The earliest evidence of record reflecting a diagnosis of
PTSD is dated in May 1991; the earliest valid diagnosis of
PTSD based on verified stressors is dated in January 2004.
2. There is no evidence that the veteran filed, or intended
to file, a formal or informal claim to reopen the issue of
entitlement to service connection for PTSD prior to February
4, 1997.
CONCLUSION OF LAW
The criteria for an effective date prior to February 4, 1997,
for the award of service connection for PTSD have not been
met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400
(2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
With respect to the veteran's claim for an earlier effective
date, VA has met all statutory and regulatory notice and duty
to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326 (2007). Because the
pertinent regulations concerning VA's duties to notify and
assist were not enacted until 2000, notification of these
duties prior to the initial adjudication of the veteran's
claim was impossible. However, a letter dated in December
2003 satisfied the duty to notify provisions. 38 U.S.C.A. §
5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16
Vet. App. 183, 187 (2002). Further, the purpose behind the
notice requirement has been satisfied because the veteran has
been afforded a meaningful opportunity to participate
effectively in the processing of his claim, to include the
opportunity to present pertinent evidence.
The veteran's service medical records, VA medical treatment
records, and identified private medical records have been
obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. Although
the duty to assist includes providing a medical examination
or obtaining a medical opinion when such is necessary to make
a decision on the claim, a VA examination was not accorded
the veteran with respect to the effective date issue as none
was required; effective date claims focus on past submissions
of claims and medical evidence. See 38 C.F.R. § 3.159(c)
(4). There is no indication in the record that any
additional evidence, relevant to the issue decided herein, is
available and not part of the claims file. See Pelegrini v.
Principi, 18 Vet. App. 112 (2004). As there is no indication
that any failure on the part of VA to provide additional
notice or assistance reasonably affects the outcome of the
case, the Board finds that any such failure is harmless. See
Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
The veteran claims entitlement to an effective date earlier
than February 4, 1997, for a grant of service connection for
PTSD. Specifically, he asserts that the
effective date for this issue should be December 28, 1992,
the date on which he originally claimed service connection.
However, the Board notes that the RO denied that original
claim for PTSD in November 1993. The veteran did not file a
notice of disagreement, or perfect an appeal, with respect to
that claim with the one year period following the December
1993 notice of the November 1993 rating decision.
Accordingly, that rating decision is final. 38 U.S.C.A. §
7105. Any claim to reopen a finally decided claim for
service connection is considered separate and distinct from
the finally decided claim; the date on which that finally
decided claim was received has no bearing on the effective
date of any service connection claim ultimately granted.
The veteran's claim to reopen the issue of entitlement to
service connection for PTSD was received at the RO on
February 4, 1997. No other letters or other documents
mention PTSD, let alone indicate that the veteran intended to
file a claim to reopen the issue of entitlement to service
connection for PTSD prior to that date.
The earliest evidence in the claims file of a diagnosis of
PTSD is in a May 1991 service department document; it notes
that the veteran carried a diagnosis of "status post
traumatic stress syndrome," incurred in the line of duty
during Operation Desert Storm. The first valid PTSD
diagnosis based on verified stressors is dated in January
2004; this occurred during a VA PTSD examination, and
concluded that the veteran had chronic PTSD based on his
experiences at Dover Air Force Base.
Under 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b) (2) (i),
the effective date of an award of direct service connection
based on a claim to reopen after a final disallowance shall
be either the date of receipt of the claim, or date
entitlement arose, whichever is later. A "claim" is
defined in the VA regulations as "a formal or informal
communication in writing requesting a determination of
entitlement, or evidencing a belief in entitlement, to a
benefit." 38 C.F.R. § 3.1(p) (2007). An informal claim is
"[a]ny communication or action indicating intent to apply
for one or more benefits." 38 C.F.R. § 3.155(a) (2007).
In this case, the veteran's claim was received on February 4,
1997. The earliest valid diagnosis of PTSD based on verified
stressors is dated January 28, 2004. Based on this rule, the
effective date of service connection should be January 28,
2004, the date of the veteran's VA examination. However, to
the veteran's benefit, an effective date of February 4, 1997,
was assigned. Accordingly, an effective date prior to
February 4, 1997 is not warranted. 38 U.S.C.A. § 5110; 38
C.F.R. § 3.400(b) (2).
The Board notes that a claim for service connection for PTSD
requires medical evidence diagnosing the condition in
accordance with 38 C.F.R. § 4.125(a); a link, established by
medical evidence, between current symptoms and an inservice
stressor; and credible supporting evidence that the claimed
inservice stressor occurred. 38 C.F.R. § 3.304(f). As noted
above, the veteran has submitted a May 1991 service
department document; it notes that the veteran carried a
diagnosis of "status post traumatic stress syndrome,"
incurred in the line of duty during Operation Desert Storm.
Although the veteran has argued that this evidence reflects a
PTSD diagnosis, his assertion is irrelevant to the effective
date issue; even if the May 1991 document were to be
recognized as a valid diagnosis of PTSD based on verified
stressors, the effective date assigned to the grant of PTSD
would remain February 4, 1997, as the date of the claim to
reopen the issue of PTSD would be the later of that date and
the date of entitlement, or May 3, 1991.
Because there is no evidence that the veteran filed, or
intended to file, a formal or informal claim to reopen the
issue of entitlement to service connection for PTSD prior to
February 4, 1997, and there is no evidence of a valid
diagnosis based on verified stressors prior to January 28,
2004, the preponderance of the evidence is against his claim
for an earlier effective date. As such, the benefit of the
doubt doctrine is inapplicable, and the claim must be denied.
See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
ORDER
An effective date prior to February 4, 1997, for a grant of
service connection for PTSD, is denied.
____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs